said insurance so made as aforesaid, in the name of the plaintiff, was made for, and on the account of said E V in her said capacity, and for the benefit of the estate of said V, deceased, to wit, at S aforesaid, and the plaintiff avers, that the said brig with the said goods and merchandises on board of her, after her departure from said Leith, and whilst she was sailing from thence, upon and before the completion of her homeward bound voyage, in the said policy of assurance mentioned, to wit, on &c., by and through the violence of the winds and waves, and by the perils and dangers of the seas and tempests was greatly damaged, disjointed, and rendered leaky, her quarter boards stove in, her sails and rigging blown to pieces, whereby the said brig was totally disabled from proceeding on her said voyage, without being repaired, and in consequence thereof, and for the purpose of such repairs, and for the safeguard and preservation of said brig and cargo, was forced to be piloted and conveyed, during her distress, into a port, viz. Norfolk, in Virginia, and there unloaded, reloaded and repaired; and, on that occasion, the plaintiff, by his agents and servants, did labor in, and about the safeguard and preservation of said vessel and cargo, and in so doing, and in repairing the damages aforesaid, of said vessel, and of the premises, did necessarily expend the sum of &c., to wit, at S aforesaid, on &c., whereby the said B by force of the policy aforesaid, and of his promises aforesaid, became liable to pay the plaintiff $, being the rateable proportion of the expenses and charges aforesaid, which the said B ought to have paid and contributed in respect to the assurance aforesaid, whereof the said B then and there had notice, &c. Very v. Brown, 1800. For an average loss, by the perils of the seas; special statement. And the plaintiff says, that afterwards, and during the said voyage, to wit, on &c. on the high seas, to wit, at &c.. the said ship, and the tackle, apparel, and furniture thereof by the force of stormy weather, and the perils of the seas, became greatly damaged and shattered, and the starboard cable of the said ship, and the mizen sail thereof, were thereby carried away, and wholly lost to the plaintiff, and also, for the preservation of the said ship and cargo, the master of the said ship was thereby obliged, and did necessarily then and there cut away the larboard anchor of the said ship &c., whereby, in order to repair the damage done to the said ship, and the tackle, apparel, and furniture thereof, as aforesaid, the said ship was then and there obliged to proceed, and did proceed, to the port of -, to unload the said cargo, to wit, at &c.; by means of which said several premises, and of the expenses occasioned thereby, the said plaintiff necessarily sustained an averaged loss, to wit, of per cent. upon the said ship so insured as aforesaid; and in consequence thereof, the said E then and there became liable to pay to the plaintiff, the sum of $-, being his proportion of the said average loss, for and in respect of the said sum of &c., so by him insured as aforesaid of all which the said E, afterwards, to wit, on &c., at &c., had notice, &c. : -- Statement of an adjustment. To follow the statement of the loss, notice, and defendant's liability :— and thereupon the said E, and the plaintiff afterwards, viz. on &c., at &c., adjusted the said loss at the sum of $- per cent. and the said E, in consideration of the premises, then and there, by a certain memorandum in writing, by him subscribed, undertook and faithfully promised the plaintiff, to pay him the said sum of $-, so by him insured as aforesaid, on &c., then next following, &c. On a policy of insurance on goods, lost by capture. For that the plaintiff, on &c., at &c., caused to be made a certain policy of insurance, containing therein, that the plaintiff, as well in his own name, as for and in the name and names, of all and every other person or persons, to whom the same did, might, or should appertain, in part or in all, did make insurance &c. (set out the policy in the past tense to the in testimonium.) And by a certain memorandum thereunder written, corn, fish, salt, fruit, flour, and seed, were warranted free from average, unless general, or the ship should be stranded; sugar, tobacco, hemp, flax, hides, and skins were warranted free from average, under 5 per cent. and all other goods, also the ship and freight were warranted free from average, under 5 per cent. unless general, or the ship should be stranded. And by a certain other memorandum thereunder written, it was declared, that the said insurance was on goods. As by the said policy of insurance, and memoranda, reference thereunto being had, will more fully and at large appear. And the plaintiff avers, that the said policy of insurance and memoranda were so made by the plaintiff as aforesaid, as the agent of one E F and for his use and benefit, and that he, the said plaintiff, did receive the order for, and effect the said policy of insurance as such agent as aforesaid, to wit, at &c. aforesaid. Of all which premises the said E afterwards, to wit, on &c. at &c., had notice. And thereupon, afterwards, to wit, on &c., at &c., in consideration that the plaintiff, at the special instance and request of the said E, had then and there paid to the said E, the sum of $-, as a premium for the insurance of the sum of $-, upon the said goods, in the said ship or vessel in the said voyage, in the said policy mentioned, and had then and there undertaken, and faithfully promised the said E, to perform and fulfil all things in the said policy of insurance contained, on the part of the insured to be performed and fulfilled, the said E, then and there undertook and promised the plaintiff, that he, the said E, would become an insurer to the plaintiff of the said sum of $, upon the said goods, in the said ship or vessel, in the said voyaye in the said policy of insurance mentioned, and would perform and fulfil all things in the said policy of insurance mentioned, on his part and behalf, as such insurer of the said sum of $-, upon the said goods, in the said ship or vessel, in the said voyage, to wit, at &c. aforesaid. And the plaintiff further avers, that heretofore, viz. on &c., at &c., divers goods of great value, had been and were shipped and loaded, in and on board of the said ship or vessel, to be carried and conveyed therein, in the said voyage, viz. at &c. aforesaid; and that the said E F was then and there, and from thence continually afterwards, until and at the time of the loss hereafter mentioned, interested in the said goods, in the said policy of insurance and memoranda mentioned, and so shipped on board the said ship as aforesaid, to a large value and amount, to wit, to the value and amount of all the moneys by him ever insured or caused to be insured thereon, to wit, at &c., aforesaid. And the plaintiff further avers, that heretofore, to wit, on &c., the said ship or vessel, with the said goods on board thereof, departed and set sail from &c. aforesaid, on her said voyage towards &c. aforesaid, and afterwards, while the said ship or vessel was proceeding on her said voyage, and before her arrival at &c., the said ship or vessel, with the said goods on board thereof, as aforesaid, were, on the high seas, to wit, at &c., with force and arms, and in a hostile manner, captured, seized, and taken by certain subjects of &c., and thereby the said goods, then and there became, and were wholly lost to the said E F, and never did arrive at &c. aforesaid; of all which said several premises, the said E afterwards, to wit, on &c., at &c., had notice, and was then and there requested by the plaintiff, to pay him the said sum of $-, so by him insured as aforesaid, &c. It is unnecessary to make profert of a policy of insurance. 1 Sid. 386. It is not necessary that the particular description of the person, as stated in the policy, should be alleged in the declaration. Nor is it necessary to state more of the policy, than relates to the right of action. Whatever relates to the cargo merely, may be omitted where the action concerns only the ship, and vice versa. The captain's name may be omitted, as also the liberty to touch at ports, where the cause does not turn on it. If the policy is not a valued one, the valuation in the policy may be omitted. The peril, which occasioned the loss, is the only one necessary to be stated. Park, 189; Lawes on Assumpsit, 387. The memorandum, at the bottom of a policy, need not be mentioned when the loss is total, nor where it is an average loss, unless it be a general one, or arise from stranding. In general, the voyage, the commencement and termination of the risk, and the happening of the events, should be correctly set out. The acknowledgment of the receipt of payment, or an averment of payment, should be contained in the declaration. All warranties or stipulations, affecting the voyage, or the insurance, should also be stated. Where the policy is on goods, it should be alleged, or should appear by necessary inference, that the goods on board the ship, were those insured. 2 B. & P. 153. It should appear that the plaintiff was interested at the time of the insurance. Proof of interest, in any share of the property insured, will support a general averment of interest, and the plaintiff will recover according to the amount of it. 3 Esp. 185; 2 B. & P. 240. When the policy is a valued one, the averment usually is, that the plaintiff was interested in a large amount, viz. the amount stated in the policy; if an open one, the amount of the sums insured. The averment of interest should be made in general terms, because under it any insurable interest may be proved; but a special averment of interest can only be proved as alleged. If the insurance is effected by an agent, named in the policy as agent for the person interested, the action should properly be brought in the name of the principal; but if it is effected by an agent, but it does not so appear on the policy, the action may be brought in the name of either, with an averment that it was made for the use of the person really interested. The averment usually made, that the ship was in safety &c. on the day of sailing, is obviously unnecessary, in an action on a policy on ship, lost or not lost, because the policy equally attaches, whether it be true or not. The declaration should contain averments, that the vessel sailed within or at the appointed time, with convoy &c., and should show that all representations or warranties were complied with, if to be performed in futoro i. e. after the signing of the policy. The loss must be averred to have happened within the risks insured against, and should be stated with sufficient certainty, for the defendant to know what he is to answer. It is usual to allege, that the goods were damaged &c. on the high seas, and by reason thereof became lost to the plaintiff at &c., within a proper county. If the plaintiff declares for a partial loss, he cannot give evidence of any loss beyond the amount alleged, but under a count for a total loss, he may give a partial one in evidence. 2 Bur. 904. It is doubtful whether it be necessary to allege notice of the loss to the defendant; if a request is alleged, it will be sufficient. It is usual to add a count for money had and received, to cover the premium, and one on an account stated, to authorize the introduction of evidence admitted between the parties, or an award &c., or an adjustment, which last however may be introduced on the count on the policy. See Doug. 301; Marsh. 636, 682; Peake's R. 227. Statement of losses by the happening of the usual risks. Loss by perils of the seas. And the plaintiff avers, that the said ship or vessel, afterwards, viz. on &c., departed and set sail on the said voyage, with the said goods and merchandise on board her, as aforesaid, and while proceeding on her said voyage, with the said goods, and before her arrival at &c., aforesaid, viz. on &c., the said ship, with the said goods and merchandise on board her as aforesaid, was by and through the mere dangers of the seas, and the force and violence of the winds and waves, wrecked, foundered and sunk in the seas, whereby the said goods and merchandise became totally lost, to wit, at &c., on &c., of all which premises the said D thereafterwards, viz. on &c., at &c., had notice, &c. Loss by capture by persons unknown. And the plaintiff avers, that the said ship afterwards while proceeding on her voyage as aforesaid, viz. on &c., at &c., was, by force and violence, arrested and restrained, by certain people unknown to the plaintiff, on the coast of &c., whereby the said ship and freight became totally lost, &c. Loss by capture of enemies. And the plaintiff avers, that the said ship, while proceeding on her said voyage, and before her arrival at &c. aforesaid, viz. on &c., at &c., upon the high seas, with force and arms was attacked in a hostile manner, and taken and carried away a prize by certain enemies of the United States, viz. by certain subjects of &c., being then and still at enmity and open war with the United States of America, and thereby the same ship, with all the tackle, apparel, boat and other furniture thereof, became and was totally lost to |